One question that is frequently asked of family law attorneys is "What visitation rights do grandparents have with their grandchildren in South Carolina?" In this article, I will provide some historical context on this issue and then explain the answer to this question, at least as it stands today.
Prior to 2003, grandparent visitation in South Carolina was governed by South Carolina Code of Laws Section 20-7-420(33), which provided "The family court shall have exclusive jurisdiction: . . . (33) To order periods of visitation for the grandparents of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats regardless of the existence of a court order or agreement, and upon a written finding that the visitation rights would be in the best interests of the child and would not interfere with the parent/child relationship. In determining whether to order visitation for the grandparents, the court shall consider the nature of the relationship between the child and his grandparents prior to the filing of the petition or complaint."
On August 18, 2003, the South Carolina Supreme Court issued its decision in Camburn v. Smith, which applied the United States Supreme Court decision in Troxell v. Granville from 2000 to cases here in South Carolina. In Camburn, the parents argued that Section 20-7-420(33) violated their due process rights, and the Court agreed. The Troxell decision made it clear that parents have a protected liberty interest in the care, custody, and control of their children and that this is a fundamental right protected by the Due Process Clause of the United States Constitution.
The Court in Camburn reiterated that the trial court must give "special weight" to a fit parent's decision regarding visitation, and that when considering grandparents' visitation over a parent's objection, it must allow a presumption that a fit parent's decision is in the child's best interest so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children. Further, parental unfitness in South Carolina must be proven by clear and convincing evidence and not merely a preponderance.
The presumption that a fit parent's decision is in the best interest of the child may be overcomeonly by showing compelling circumstances, such as significant harm to the child, if visitation is not granted. However, the fact that a child may benefit from contact with the grandparent, or that the parent's refusal is simply not reasonable in the court's view, does not justify government interference in the parental decision.
In summary, the Camburn decision made it clear that parents and grandparents are not on an equal footing in a contest over visitation. Before visitation may be awarded over a parent's objection, one of two evidentiary hurdles must be met: (1) the parent must be shown to be unfit by clear and convincing evidence, or (2) there must be evidence of compelling circumstances to overcome the presumption that the parental decision is in the child's best interest. The bottom line is that it became very, very difficult for grandparents to have the Family Court award visitation over a parent's objection.
A bill was introduced on December 9, 2009, to modify the relevant section of the South Carolina Code, which was now Section 63-3-530(33), to provide for grandparents visitation in light of theTroxell and Camburn decisions. The bill eventually passed, was signed by Governor Sanford on June 24, 2010, and became effective on July 1, 2010.
This section now provides that the Family Court "has exclusive jurisdiction to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:
1. the child's parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
2. the grandparent maintained a relationship similar to a parent-child relationship with the minor child; and
3. that awarding grandparent visitation would not interfere with the parent-child relationship; and:
a. the court finds by clear and convincing evidence that the child's parents or guardians are unfit; or
b. the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child's best interest.
The judge presiding over this matter may award attorney's fees and costs to the prevailing party.
For purposes of this item, ‘grandparent' means the natural or adoptive parent of any parent to a minor child."
It is important to note that all three of the requirements set forth in (1), (2), and (3) must be met in order for the Court to be able to grant visitation to the grandparent(s). Obviously, in light of the relatively short amount of time that has passed, it is yet to be seen whether this new statute will be withstand scrutiny, but at least it gives grandparents something to work with and hope to see their grandchildren.